1. Employee
Classification
Joel J. Borovsky, Jackson Lewis LLP
May 3, 2012
Thrive. Grow. Achieve.

2. EMPLOYEE CLASSIFICATION
CONTACT
JOEL J. BOROVSKY
JACKSON LEWIS LLP
10701 PARKRIDGE BLVD., SUITE 300
RESTON, VA 20191
703.483.8300
BOROVSKYJ@JACKSONLEWIS.COM
Employee Classification/ Page 2

3. EMPLOYEE CLASSIFICATION
INTRODUCTION
Employee Classification/ Page 3

4. EMPLOYEE CLASSIFICATION
ADVANTAGES TO ENGAGING INDEPENDENT CONTRACTORS:
• Allows employers to avoid the substantial payroll and administrative
responsibilities and benefit costs typically involved in maintaining payroll
personnel
• Gives employers the chance to assess the skills and abilities of workers before
hiring them as employees
• Perception that independent contractor arrangements are easier to sever
• Helps with recruiting: Some
workers prefer to be contractors.
Employee Classification/ Page 4

5. EMPLOYEE CLASSIFICATION
GAO AUGUST 2009 REPORT
• GAO August 2009 Report—“Employee Misclassification, Improved Coordination,
Outreach and Targeting Could Better Ensure Detection and Prevention”
• On federal level, misclassification results in revenue loss of at least $1.6 billion.
• Recommends greater enforcement by U.S. Department of Labor (DOL) and
Internal Revenue Service (IRS)
• Recommends greater coordination of resources
Employee Classification/ Page 5

6. EMPLOYEE CLASSIFICATION
IRS TARGETS IC RELATIONSHIPS
• Tax regulatory compliance and enforcement is extremely active:
̵ Misclassification of workers appears as number 5 on the top-10 list of IRS audit and
enforcement priorities in the business/ employer tax area.
̵ Audits have increased between 10 percent and 30 percent in the years since 2000.
̵ IRS collection of revenue in the area of corporate audit has increased more than 15-fold,
from 219,778 levies in 2000 to 3.4 million in 2009.
̵ State tax environment is similar due to budget shortfalls.
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7. EMPLOYEE CLASSIFICATION
DOL’S INCREASED FOCUS
• According to DOL’s FY 2011 budget request:
̵ “Worker misclassification . . . generates substantial losses to the Treasury and the Social
Security, Medicare and Unemployment Insurance Trust Funds.”
̵ “A joint Labor-Treasury initiative to strengthen and coordinate Federal and State efforts”
is needed.
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8. EMPLOYEE CLASSIFICATION
DOL’S INCREASED FOCUS
• FY 2011 budget sought $25 million:
̵ $12 million for DOL’s Wage and Hour Division (WHD) to focus on misclassification
̵ $11.25 million for grants to states “to increase their capacity to focus on misclassification
and reward the States that are most successful at detecting and prosecuting employers
that fail to pay their fair share”
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9. EMPLOYEE CLASSIFICATION
DOL’S INCREASED FOCUS
• FY 2011 budget sought $25 million (continued):
̵ $1.6 million for the DOL Solicitor’s Office “to pursue misclassification litigation, including
multi-State litigation to coordinate enforcement with States and leverage their
groundbreaking work”
̵ $150 thousand for OSHA to modify training “to allow inspectors to identify potential
employee misclassification and share information with WHD”
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10. EMPLOYEE CLASSIFICATION- OVERVIEW
LEARNING OBJECTIVES:
• Understand and recognize the factors that differentiate between contractors and
employees.
• Discuss the various laws that are impacted by improper classification of
workers, and the consequences of misclassification.
• Practice with real-life scenarios
MAIN OBJECTIVE: YOU LEAVE THIS SEMINAR ABLE TO RECOGNIZE, DETECT, AND
PREVENT EMPLOYEE MISCLASSIFICATION ISSUES.
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11. EMPLOYEE CLASSIFICATION- OVERVIEW
NOT Today’s Goal:
To memorize and be able to describe in detail all of the
factors of the multi-factor tests we will discuss.
Today’s Goal:
To be able to recognize red flags and problem
situations, and to research further and correct
misclassification issues.
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12. EMPLOYEE CLASSIFICATION
INDEPENDENT CONTRACTOR VS. EMPLOYEE TESTS
Employee Classification/ Page 12

13. EMPLOYEE CLASSIFICATION- LEGAL
TESTS
A VARIETY OF LEGAL TESTS ARE USED IN VARIOUS STATUTES TO
DETERMINE IC STATUS:
• Common Law Right to Control Test
• Common Law “Economic Realities” Test
• IRS Category Test (This replaced IRS “20 Factor” Test)
• “ABC” Test
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14. EMPLOYEE CLASSIFICATION- COMMON
LAW TESTS
COMMON LAW RIGHT TO CONTROL TEST:
• Hiring party’s control over details of the work.
• Worker’s occupation and skill
• Relevance of work to Company’s business
• Worker’s investment, materials and tools.
• Location of work
• Duration of the relationship.
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15. EMPLOYEE CLASSIFICATION- COMMON
LAW TESTS
COMMON LAW RIGHT TO CONTROL TEST (CONT’D):
• Control of work hours
• Method of payment
• Right to hire assistants
• Taxes, employee benefits
• Parties’ intentions
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16. EMPLOYEE CLASSIFICATION- COMMON
LAW TESTS
COMMON LAW “ECONOMIC REALITIES” TEST
• Nature and degree of control exercised by the alleged employer as to the manner
in which work is to be performed
• Worker’s opportunity for profit or loss, worker’s investment in business
• Degree of permanency and duration of the working relationship
• Degree of skill required to perform the work.
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17. EMPLOYEE CLASSIFICATION- COMMON
LAW TESTS
COMMON LAW “ECONOMIC REALITIES” TEST (CONT’D)
• Extent to which service rendered is integral part of employer’s business
• Employees are “those who as a matter of economic reality are dependent on the
business to which they render service”
̵ Significance and use of the pure form of this test has been greatly diminished by judicial
opinions.
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18. EMPLOYEE CLASSIFICATION- FORMER
IRS “20 FACTOR” TEST
• Instructions • Order or Sequence Set • Furnishing Tools &
• Training • Order or Written Reports Materials
• Integration • Order or Written Reports • Significant Investment
• Services Rendered • Payment of Business/ • Realization of Profit or
Personally Traveling Expenses Loss
• Hiring, Supervising, • Working for More than
Paying Assistants One Business at a Time
• Continuing Relationship • Making Services
Available to the General
• Set Hours of Work
Public
• Full-Time Required
• Company’s Right to
• Working on Business Discharge
Premises
• Worker’s Right to
Terminate
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19. EMPLOYEE CLASSIFICATION- CURRENT
IRS CATEGORY TEST
THE IRS’S ONCE-COMMON “20-FACTOR TEST" HAS BEEN
REPLACED BY A NEW TEST.
THIS TEST EXAMINES THE RELATIONSHIP IN THREE AREAS:
1. Behavioral control covers the amount of control the employer has over
the worker in terms of where, when, and how the job is done, among
other factors.
2. Financial control dictates how much control the company has over a
worker's pay, business expenses, and facility investment.
3. Relationship type is based on written agreements, employee benefits, and
length of relationship between the company and worker.
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20. EMPLOYEE CLASSIFICATION-“ABC” TEST
UNDER THE “ABC” TEST, USED IN ABOUT HALF OF THE STATES TO
DETERMINE UNEMPLOYMENT ELIGIBILITY, A WORKER IS AN EMPLOYEE
UNLESS:
• The worker is free from control and direction in performing the services;
• The service is performed outside the usual course of the company’s business; and
• The worker is customarily engaged in an independently established trade,
occupation, profession or business of the same nature as that involved in the service
performed.
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21. EMPLOYEE CLASSIFICATION- ABC TEST
A. “FREEDOM FROM CONTROL”
“FREE FROM CONTROL AND DIRECTION IN CONNECTION WITH THE
PERFORMANCE OF THE SERVICE, BOTH UNDER THE CONTRACT FOR THE
PERFORMANCE OF SERVICE AND IN FACT.”
•Employment contract/job description indicating that individual is free from supervisory
direction of control is insufficient
•Look at actual activities and duties, which should be carried out with minimal instruction
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22. EMPLOYEE CLASSIFICATION- ABC TEST
B: “SERVICE OUTSIDE USUAL COURSE OF EMPLOYER’S BUSINESS”
• If the worker’s services form a regular and continuing part of employer’s business,
then individual is considered employee
• Almost impossible to meet in many cases
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23. EMPLOYEE CLASSIFICATION- ABC TEST
C. INDEPENDENT TRADE, OCCUPATION, PROFESSION OR BUSINESS:
• The worker has to be engaged in independent trade or business
• The worker can sell his services to a number of entities in community
• Worker cannot be dedicated to one employer
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24. EMPLOYEE CLASSIFICATION- ABC TEST
IRRELEVANT FACTORS UNDER ABC TEST:
• Failure to withhold taxes
• Contribute to unemployment compensation
• Provide workers compensation
• Employer’s belief/Employee’s belief
̵ Strict liability statute
Employee Classification/ Page 24

25. EMPLOYEE CLASSIFICATION- ABC TEST
Specific Laws, Tests and Consequences
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26. EMPLOYEE CLASSIFICATION- SPECIFIC
LAWS
Each statute and enforcement agency has slightly different tests for
determining independent contractor status:
• IRS: U.S. Tax Code (federal income tax withholding)
• U.S. Department of Labor:
– FLSA (Fair Labor Standards Act -- minimum wage and overtime);
– FMLA (Family and Medical Leave Act);
– ERISA
• State Unemployment Laws/Agencies
• State Workers’ Compensation Laws/Agencies
• State income tax withholding
• Federal Anti-Discrimination Laws (Title VII, ADA)
• State and Local Anti-Discrimination Laws
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27. EMPLOYEE CLASSIFICATION- FEDERAL
AND STATE TAX LAWS
AS STATED ABOVE, THE IRS NOW USES A COLLECTION OF FACTORS
GROUPED INTO THREE CATEGORIES:
• Behavioral control analyzes the amount of control the employer has over the
worker’s choice of work location, tools, assistants, supplies, and priority of tasks,
among other factors.
• Financial control involves how much control the company has over a worker's
method and amount of pay (by the hour or task), business expenses, and facility
investment.
• Relationship type is based on written agreements, employee benefits, and
permanency of relationship between the company and worker.
Note: State taxing agencies will vary.
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28. EMPLOYEE CLASSIFICATION- FEDERAL
AND STATE TAX LAWS
CONSEQUENCES OF MISCLASSIFICATION:
• Employer’s share of Federal payroll taxes going back three years, plus penalties and
interest.
• Possibly the employee’s share of taxes, which should have been withheld, plus
penalties and interest.
• Information sharing programs with the states likely will result in state income tax
withholding penalties, unemployment tax liability, and disability program taxes.
• State tax liability often will trigger investigation into unpaid worker’s compensation and
unemployment benefits. This can also result conversely when contractors apply for such
benefits after termination.
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29. EMPLOYEE CLASSIFICATION- EMPLOYEE
BENEFITS
ERISA LIABILITY
• The analysis for classifying workers established by courts under ERISA is virtually
the same as that commonly used by the courts and the IRS under the Internal
Revenue Code.
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30. EMPLOYEE CLASSIFICATION- EMPLOYEE
BENEFITS
ERISA Liability: Consequences
• Retroactive entitlement to benefits by the contractor.
• Plan may fail coverage or discrimination tests, or may be deemed to violate
minimum participation standards.
• Plan may be liable for wrongful denial of benefits and breach of fiduciary duty
claims.
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31. EMPLOYEE CLASSIFICATION- EMPLOYEE
BENEFITS
Microsoft Liability
• Class action lawsuit against Microsoft Corp. brought by a group of individuals
who had been characterized by Microsoft as independent contractors. The
members of the class were determined by the I.R.S. to be employees. Following
the determination, the individuals sought retroactive coverage under Microsoft’s
401(k) plan and employee stock purchase plan.
• Vizcaino -- 9th Circuit Case
• Class action suit brought under ERISA (1,100 people)
• At issue, benefits pursuant to Company’s savings and stock purchase plans
• Each individual signed agreement
– They were independent contractors
– No employer-employee relationship
– No withholdings
– Individuals responsible for own insurance and benefits
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32. EMPLOYEE CLASSIFICATION- EMPLOYEE
BENEFITS
• Ninth Circuit holds:
– Internal determination regarding savings plan was “arbitrary/capricious”
– Stock purchase plan - misclassified workers could maintain a contractual claim
– Remanded
– Case settled - $96.885 million
• Consequences of misclassification can be severe. Be diligent in classification
issues. Clearly express intention to exclude classes from eligibility in plan
documents. Include inoculation provisions.
Employee Classification/ Page 32

33. EMPLOYEE CLASSIFICATION- FEDERAL
WAGE/HOUR LAW (FLSA)
THE FLSA’S “ECONOMIC REALITIES” TEST:
• Extent to which the services rendered are an integral part of the principal’s
business
• Permanency of the relationship
• Amount of the worker’s investment in facilities and equipment
• Nature and degree of control by the principal
Employee Classification/ Page 33

34. EMPLOYEE CLASSIFICATION- FEDERAL
WAGE/HOUR LAW (FLSA)
THE FLSA’S “ECONOMIC REALITIES” TEST (CONT’D):
• Worker’s opportunities for profit and loss
• Amount of initiative, judgment, or foresight in open market competition required
for the worker’s success
• Degree of independent business organization and operation
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35. EMPLOYEE CLASSIFICATION- EMPLOYEE
BENEFITS
FLSA LIABILITY: CONSEQUENCES
• Retroactive entitlement to overtime pay by the contractor for two to three years.
• Employer likely has not kept accurate time records, leading to inability to defend
claims.
• Liquidated (double) damages are applied; attorney’s fees can be awarded
• DOL audits and investigations can result.
• Class actions can result in exorbitant costs and settlements.
State laws will have their own penalties.
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36. EMPLOYEE CLASSIFICATION-THE FAMILY
AND MEDICAL LEAVE ACT (FMLA)
The U.S. Department of Labor
administers the FMLA,
which is based on the FLSA,
so the definition of “employee”
is the same.
Employee Classification/ Page 36

37. EMPLOYEE CLASSIFICATION-THE FAMILY
AND MEDICAL LEAVE ACT (FMLA)
FLSA LIABILITY: CONSEQUENCES
• Liability for denial of FMLA leave.
• Liability for interfering with, restraining or denying leave entitlement.
• Liquidated (double) damages and attorney’s fees can be awarded
• Risk of class actions.
• State FMLA laws can provide additional penalties.
Employee Classification/ Page 37

38. EMPLOYEE CLASSIFICATION-THE
NATIONAL LABOR RELATIONS ACT
The National Labor Relations Act applies only to employees. A common
tactic of labor unions seeking to organize workers is to challenge the
independent-contractor status of a group of workers that perform a
certain function for companies in a particular industry. The unions then
seek a court determination that the workers are employees entitled to the
right to organize and bargain for the terms and conditions of their work.
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39. EMPLOYEE CLASSIFICATION-THE
FEDERAL ANTI-DISCRIMINATION LAWS
EEOC FACTORS INCLUDE:
• Extent of control exercised by company.
• Whether worker is in distinct occupation/business.
• Type of occupation, of worker and whether type of work is generally done under direction
of supervisor or by specialist without supervision.
• Skill required in the occupation.
• Whether company supplies equipment, tools and place of work for the worker.
• Length of time worker is engaged to work.
• Method of payment, whether by time or job.
• Whether company withholds social security and other taxes from the worker’s pay.
Employee Classification/ Page 39

40. EMPLOYEE CLASSIFICATION- THE ICS:
EEOC FACTORS
EEOC FACTORS (CONT’D)
• Manner in which work relationship may be terminated.
• Whether work is integral part of company’s business.
• Intention of parties creating the work relationship.
• Whether worker was required to work exclusively for company, or would have
been permitted to perform same type of work for another employer.
• Whether worker could delegate the work.
• Whether workers is an employer with his/her own employees.
• Whether worker was required to make capital investment.
• Whether work afforded worker an opportunity for profit/loss depending on
skills/management abilities.
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41. EMPLOYEE CLASSIFICATION- THE ICS:
EEOC FACTORS
Conclusion
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42. EMPLOYEE CLASSIFICATION- PRACTICAL
SOLUTIONS
VIRTUALLY ANY INDEPENDENT CONTRACTOR CLASSIFICATION COULD COME UNDER
SCRUTINY IF:
• The work is part of the company’s normal business;
• The company exerts significant control over the manner in which the work is
performed, as opposed to the quality of the good or service provided;
• The worker cannot or does not work for other clients or customers; and/or
• The worker does the same work as company employees.
Employee Classification/ Page 42

43. EMPLOYEE CLASSIFICATION- PRACTICAL
SOLUTIONS
VIRTUALLY ANY INDEPENDENT CONTRACTOR CLASSIFICATION COULD COME UNDER
SCRUTINY IF:
• Conduct an audit of all independent contractor arrangements, including contracts
and actual job duties.
• Consider all factors discussed above; balance the factors and make a
determination.
• Consider whether to terminate all independent contractor agreements and rehire
as employees
– Hire independent contractors through temporary agency or other company.
– Loosen restrictions and control; allow subcontracting or work for other clients.
Employee Classification/ Page 43

44. EMPLOYEE CLASSIFICATION-
HYPOTHETICALS
“LET’S SEE WHAT WE’VE
LEARNED”
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45. EMPLOYEE CLASSIFICATION-
HYPOTHETICALS
Employee Classification/ Page 45

46. EMPLOYEE CLASSIFICATION-
HYPOTHETICALS
JOEL J. BOROVSKY
JACKSON LEWIS LLP
10701 PARKRIDGE BLVD., SUITE 300
RESTON, VA 20191
703.483.8300
BOROVSKY@JACKSONLEWIS.COM
Employee Classification/ Page 46